Ms Southey, the applicant in this proceeding, brought discrimination claims pursuant to the Anti-Discrimination Act (NSW) (the AD Act) against Australian Press Council (APC) in proceedings 2022/00295291 and 2022/00233496.
The APC sought to summarily dismiss the proceedings in 2022/233496 on 30 August 2022, the Tribunal dismissed the APC's application in Southey v Australian Press Council [2022] NSWCATAD 348 (Southey 2022 Decision). Subsequently, Ms Southey filed separate Points of Claim in each proceeding.
On 13 February 2023, the APC made an interlocutory application that the proceedings in 2022/00295291 and 2022/00233496 be summarily dismissed pursuant to s55(1)(b) of the CAT Act on the basis that they are frivolous or vexations or otherwise misconceived or lacking in substance.
For the reasons that follow, we have decided to:
1. grant the application for summary dismissal as to the proceedings in 2022/00295291 concerning publications published in January 2019 involving Ms Amati.
2. dismiss the application for summary dismissal as to the proceeding in 2022/233496 concerning publications published in December 2018 involving Mr Huntley.
[2]
2022/00295291 Ms Amati
On 8 April 2020, the President of the Anti-Discrimination Board (ADB) received a complaint from Ms Southey alleging transgender discrimination in the provisions of goods and services as to APC's conduct in regard to a publication involving Ms Amati.
Unfortunately, the complaint was overlooked and not accepted for investigation until 18 January 2022 by which time it was over 18 months and subject to referral to the Tribunal under section 93B of the AD Act. On 27 September 2022, the President's delegate formed the view that the matter was unable to be resolved by conciliation and should be referred to the Tribunal under section 92B of the AD Act.
The complaint relates to a Daily Mail Australia article published on 5 August 2019 headlined 'Transgender woman who brutally hacked 7-Eleven customers with an axe begins 'de transitioning' behind bars - because she says it's a reality she'll never be accepted as a female.'
Ms Southey lodged the complaint with APC on 20 August 2019 and it was dismissed on 30 January 2020. Ms Southey alleged that she, or more accurately, her complaint was dealt with less favourably than comparable complaints that did not concern people who are transgender. Ms Southey stated that the APC's decision to dismiss the complaint perpetuated discrimination against transgender people and that if an article made such prominent references to an offender's race or sexual orientation, the APC would have not hesitated to refer the matter to an Adjudication Panel for examination.
Ms Southey stated that the handling of her complaint could not be reconciled with APC's previous treatment of similar articles that over emphasise the race of an offender. Ms Southey provided a number of comparator Adjudication Decisions which were relied on as evidence that APC has acted where there was an unwarranted emphasis placed on certain characteristics that were not transgender.
APC denies that it discriminated against Ms Southey, or that it determined her complaint differently because she is transgender or because the article concerned transgender issues. APC stated that it dealt with the complaint in accordance with its complaint handling process on its merits. Pursuant to the process, the Executive Director found that the APC's standards of practise were not breached.
APC accepts that references to a person's transgender status that are not relevant to their alleged criminality could be prejudicial, as evidenced by two recent adjudications which found a breach of the standards of practise in Adjudications 1756 and 1755.
APC refers to the fact that it had previously referred one of Ms Southey's complaints relating to reporting on Ms Amati to Adjudication 1707 and that the adjudication decision was subject to Ms Southey's claim of discrimination which was dismissed in Southey v Australian Press Council Inc [2021] NSWCATAD 329 (Southey 2021 Decision) .
APC also submitted that the most common outcome for complaints is that they are not referred to Adjudication and discontinuance is not unusual, nor evidence of discrimination having occurred. APC submitted that it had demonstrated that it will refer complaints relating to reporting on transgender persons and transgender issues to adjudication when the circumstances warranted and that some of those recent referrals have been upheld, demonstrating that the APC does not discriminate against transgender people or transgender issues.
[3]
2022/00233496 Mr Huntley
The details in regard to this complaint to the ADB are set out in paragraphs 20 to 21 and the facts and circumstances of the complaint are set out in paragraphs 88 to 92 in the Southey 2022 Decision.
Complaint in 2022/233496 involves an online article published on 9 December 2018 by Daily Mail Australia. The headline of the article was: 'Child killer Ian Huntley who murdered 10 year-olds Holly Wells and Jessica Chapman 'wants a sex change so he can move jails and start a new life as a woman named Nicola (and is even demanding stockings for Christmas).'
APC's response to Ms Southey's complaint made on 29 May 2020 was that the ED of the APC decided not to proceed further with the complaint, that is refer the complaint for adjudication as it was considered that the publisher had 'sufficiently remedied the matter' by removing the article.
[4]
Interlocutory application for summary dismissal
On 13 February 2023, the APC made an application seeking that both proceedings be summarily dismissed pursuant to s55(1)(b) of the CAT Act. Attached to the application is a document setting out the grounds for the application.
The ground for the dismissal state that the Points of Claim are defective in the following ways:
1. Do not make clear whether the discrimination is direct or indirect;
2. Evidence is referred to under the heading 'Particulars';
3. Examples should not be included in the Points of Claim. One of the examples is a reference to a matter previously decided in APC favour in Southey 2021 Decision;
4. Orders sought in the Points of Claim are outside the scope of s108 of the AD Act;
On the basis of the matters set out above, APC submitted that the proceedings are vexatious, misconceived or lacking in substance and should be dismissed pursuant to s55(1)(b) of the CAT Act.
Written submissions in support of the application were filed by APC on 20 February 2023 and 21 March 2023 and Ms Southey relied with written submissions dated 14 March 2023.
[5]
Mr Dillon's affidavit
APC relied on Mr Dillon's affidavit, the solicitor for APC in these proceedings. Mr Dillon's evidence was that the Points of Claim in both matters referred to the same four examples of complaints Ms Southey made to APC to assert discrimination. The first example was declined by APC on 7 November 2018. Ms Southey made a complaint to ADB. ADB declined the complaint.
The second and third example was declined by APC on 30 October 2019 and on 6 July 2020 respectfully. Ms Southey made a complaint to ADB. Following a conciliation conference, Ms Southey and APC entered into a settlement agreement and the complaint was withdrawn.
Mr Dillon also refers to a withdrawal of application for leave in matter 2022/00290486 on the basis that there was an overlap in facts between the complaint and the Southey 2022 Decision as it reported on Ms Amati's offence.
There is also annexed to Mr Dillon's affidavit two letters that were sent to Ms Southey setting out APC's concerns about the Points of Claim. The letter dated 27 January 2023 is in reference to the matter involving a publication about Ms Amati. The letter refers to the Southey 2022 Decision which dismissed two sets of proceedings related to publications about Ms Amati on the basis that there would be no useful purpose for the matters to proceed.
The letter dated 27 January 2023 requests that Ms Southey amend the Points of Claim to clearly set out whether the complaint is direct or indirect discrimination and the material facts that are relied on and to remove reference to the 'examples'. The letter also stated that the Points of Claim cannot be remedied by the provision of further particulars.
[6]
APC's submission on the summary dismissal
First, it is submitted that the Points of Claim fails to refer to any material facts necessary to establish a claim of either direct or indirect discrimination pursuant to ss38B and 38M of the AD Act. The fact that the claim was discontinued by APC without referral for an adjudication cannot itself sustain a claim of direct or indirect discrimination. No other material facts are pleaded from which an inference could be made that the APC was treated unlawfully.
APC relies on the conclusion reached in Southey 2021 Decision and submits that the outcome is 'inevitable' in this case and in consideration of ss3(d) and 36(1) of the CAT Act, the matter should be dismissed.
Secondly, the Points of Claim contains evidence and pleadings should only contain material facts and the evidence should be 'excluded'.
[7]
Ms Southey's submission on the summary dismissal
As to whether the complaint is direct or indirect discrimination, in response to a question from the Tribunal, Ms Southey submitted that the claim was for direct discrimination, however, the written submissions refer to both direct and indirect discrimination.
Ms Southey's claim is that APC has upheld complaints about material that is:
1. Substantially inaccurate;
2. Breaches a person's reasonable expectation of privacy;
3. Contains pejorative slurs directed at minorities; and
4. Contains gratuitous references to a protected characteristic.
Ms Southey submitted that the publications in question contained all the material above. Ms Southey points to Adjudications where APC upheld complaints that contained these material elements but that they were not in reference to transgender people.
Ms Southey relied on specific Adjudications made by APC as comparators. She alleged that APC referred analogous complaints for adjudication and upheld those complaints because in part the publications referred to a protected characteristic but dismissed the complaint about a transgender person without referring it for Adjudication. Ms Southey submits that this constitutes discrimination within the meaning of s38M.
Ms Southey submitted that the complaints have consistently been framed as one of transgender discrimination in the provision of services, which is clear in the President's report. She submitted that APC's claim that it cannot comprehend the nature of the claim or the cause of action was disingenuous.
In response to APC's complaint that the Points of Claim contains reference to evidence, Ms Southey points to section 36 of the CAT Act for the proposition that the parties should focus on resolving the 'real issues' in the proceedings. APC's repeated attempt to summarily dismiss the proceedings in regard to the publication referring to Mr Huntly for the same reasons or for 'minor technicalities' is a misuse of Tribunal's time and resources.
[8]
Consideration
We set out the principles as to summary dismissal in paragraphs 26 to 37 in Southey 2022 Decision and do not need to rehearse them again for the purpose of these applications. Suffice the say that in a summary dismissal application the discretion to dismiss a claim prior to hearing the merits of the claim must be exercised with exceptional caution. In circumstances where there may be substance to an applicant's allegations which if accepted would ground a finding that discrimination has occurred, no strike out of the complaint could be contemplated. Seventh-Day Adventist Church (North NSW Conference) Limited v Seupule-Feau [2016] NSWCATAP 256 at [22] - [24].
Dealing first with the matter about the publication by Daily Mail Australia involving Ms Amati. The publication relies on material contained in an affidavit filed in the Supreme Court of New South Wales for the purpose of responding to the Crown's request that her sentence be extended. The article also referred to numerous statements made in the affidavit in regard to matters unrelated to her transgender status.
In Southey 2021 Decision the Tribunal dealt with publications referring to Ms Amati. In that case the matter was referred to adjudication. The Tribunal accepted APC's evidence that indicated that considerable latitude is given by APC where a matter includes a report of what happened in open court. Secondly, the Tribunal found that Ms Amati was very open on her Facebook page about her transitioning which again gave considerable latitude to the publisher to include details about transitioning in the publication. Two of the four photos in the publication are taken from Facebook.
In Southey 2022 Decision, the publication involving Ms Amati was drawn from details about the sentencing hearing in the District Court of New South Wales. The complaint was not referred to adjudication. At paragraphs [86]-[87], the Tribunal found that the application was hopeless and bound to fail because the same or similar facts determined in Southey 2021 Decision would have to be re-considered.
We are of the view that similar facts as to reporting on Ms Amati's transgender status would need to be reconsidered if this matter proceeded to final hearing. The similar facts are that the reporting was in connection with the same criminal proceedings reliant on Ms Amati's public statements and on photographs from Ms Amati's public Facebook page.
For the reasons set out above, which are principally the reasons set out in Southey 2022 Decision we find that the application in regard to the publication reporting on Ms Amati is hopeless and bound to fail as the controversy was determined in the Southey 2021 Decision.
[9]
Complaint involving Mr Huntley
As set out above, APC relies on four grounds. First, that the Points of Claim does not make clear whether the discrimination is direct or indirect. Secondly that evidence is referred to under the heading 'Particulars'. Thirdly that the examples should not be included in the Points of Claim. One of the examples is a reference to a matter previously decided in APC favour in Southey 2021 Decision. Fourthly, that orders sought in the Points of Claim are outside the scope of s108 of the AD Act.
The second and third grounds can be dealt with quickly. Simply because there is reference to evidence in the Points of Claim which APC claims is irrelevant is not a basis to summarily dismiss proceedings. Any ruling about the admissibility of evidence relied on by Ms Southey and APC would be dealt with in the usual course if the matter proceeds to hearing.
In regard to the first ground, Part 3A of the AD Act deals with discrimination on transgender grounds. Section 38M makes it unlawful for a person who provides goods or services to discriminate against another person on transgender grounds in the terms on which the other person is provided with those goods and services.
For the purpose of this application it is accepted that APC provided services (Australian Press Council Inc v Southey [2021] NSWCATAP 9 at [4]) to Ms Southey, a transgender person and that the services concerned a publication about a person purported to be transgender.
APC's complaint about the application involving Mr Huntley is that Ms Southey has not properly 'pleaded' her case. There is no requirement for the parties to plead their case in NCAT. The report of the investigation conducted by the delegate of the President of the ADB together with the documents obtained in the course of the investigation is provided to the Tribunal when the matter is referred to the Tribunal under the AD Act. When the complaint is referred to NCAT pursuant ss 93A, 93B or 93C of the AD Act, it comes within the Tribunal's general jurisdiction; ss 28, 29 and Sch 3, cl(3)(a) of the Civil and Administrative Act 2013 (NSW) (CAT Act).
Section 94A of the CAT Act sets out the form of the complaint to be referred to the Tribunal. The President's Summary of the Complaint contains information as to the names of the parties, the period of the complaint, reference to the section of the Act on which the referral is made, the number of complaints, the type of complaints and section of the Act allegedly breached, the exceptions relied on by the respondent and a summary of the complaint and response.
In many cases, particularly where the applicant is self-represented the President's Summary sufficiently sets out the case advanced by the applicant and the case the respondent has to meet. It is common for the applicant, particularly where the person is self-represented to not identify in the complaint whether it is alleged that the discrimination is direct or indirect or alleged in the alternative. This is what has occurred in this case and the APC in part complaints that the complaint ought to be summarily dismissed because Ms Southey has not, with sufficient specificity explained whether she alleges only direct discrimination.
A properly drafted Points of Claim, prepared by a person with legal skills can be of significant assistance to the parties and the Tribunal where the real issues in dispute are not readily apparent from the terms of the complaint or the matter is complex. The case management of these proceedings did result in orders requiring the parties to file a Points of Claim and a Points of Defence. However the Points of Claim filed by Ms Southey make no reference to whether the complaint involves direct discrimination only or direct discrimination or indirect discrimination in the alternative.
Section 38B(1)(a) of the AD Act is what is described as direct discrimination and s38B(1)(b) is indirect discrimination. The first two elements of indirect discrimination requires that the applicant comply with a requirement or condition compared to people who are not transgender or seek a service as a transgender person or about a publication concerning a transgender status person or a person purported to be transgender. The third element is that the requirement or condition is unreasonable. The fourth element is that the person does not or is not able to comply with the requirement or condition.
Direct discrimination requires the applicant to be treated less favourably compared to another person in similar circumstances who is not a transgender person or a person who made a complaint to the APC about a publication concerning a transgender status person or a person purported to be transgender.
The key issue in dispute in these proceedings is whether in the provision of the service there was 'discrimination' based on the ground of transgender. The ground need only be one of the reasons for the conduct and does not need to be the dominant or substantial reason for doing the act s4A of the Act. The onus is on the applicant to prove the material facts in the contravention set out in s38M(b) of the Act.
APC denies that there was less favourable treatment or that it required Ms Southey to comply with a requirement or condition.
Dealing first with the direct discrimination claim, Ms Southey's claim is fairly straightforward. She alleged that she or more accurately the complaint she made to APC was treated less favourably compared to complaints made to APC about publications that did not involve transgender persons. She sought to rely on other decisions made by APC as comparators to demonstrate that APC upheld those complaints but not the complaint she made about the publication involving Mr Huntley.
The indirect discrimination complaint is entirely opaque. Ms Southey's Points of Claim does not explain what the requirement or condition was that APC required her to comply with. While she is a self-represented litigant she has had some experience in appearing in this jurisdiction in this Tribunal and has had the benefit of the thorough reasoning of Tibbey SM and Dr Murray GM in Southey 2021 Decision as to what elements of the contravention she needed to address. Ms Southey is also a party to numerous interlocutory decisions.
Ms Southey submitted that the issue of whether there is direct or indirect discrimination may 'turn on the evidence'. '[W]hy a decision maker made a particular decision may only be brought to light upon the production of information … held by the decision-maker, or by examination of the decision-maker.' This submission is rejected. While an applicant can allege direct and indirect discrimination in the alternative they are mutually exclusive provisions, Australian Iron and Steel Pty. Ltd. v. Banovic (1989) 168 CLR 165, Brennan J pp 170-171 and Dawson J at p 184.
To allege indirect discrimination, the applicant must allege that there was a requirement or condition, that the requirement or condition was not reasonable and that she does not or is not able to comply with it. Without an allegation as to these three elements prior to the commencement of the hearing, APC cannot know what is alleged against it and be in a position to meet Ms Southey's case. The requirement or condition must be 'formulated with some precision' Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349 (Waters) at [23] per Mason CJ and Gaudron J.
It is the substance of Ms Southey's complaint that determines the legal issues in dispute and in turn the relevance of the evidence. It would be unfair if Ms Southey could at the end of the hearing assert that there was a requirement or condition and that the requirement or condition was not reasonable and that she does not or is not able to comply with without an opportunity for APC to know what the nature of the requirement or condition was and why it was unreasonable before for the hearing.
Indirect discrimination is not a self-evident construct. It considers conduct where nominally equal treatment can disguise discrimination. Its focus is on the adverse impact on the person because of the same treatment as where direct discrimination is concerned with disparate treatment, as stated by Dawson and Toohey JJ in Waters at 392 [21]:
A distinction is often drawn between two forms of discrimination, namely "direct" or "disparate treatment" discrimination and "indirect" or "adverse impact" discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such "equal" treatment is that the former is in fact treated less favourably than the latter. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers: Griggs v. Duke Power Co. (1971) 401 US 424. Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.
Ms Southey has failed to identify any element of the indirect discrimination claim. She informed the Tribunal at the hearing that her claim was direct discrimination, this is consistent with the complaint to the ADB. If Ms Southey seeks to rely on an indirect discrimination claim she must explain to APC what the requirement or condition was prior to evidence being filed. If she does not, she will not be permitted to rely on s38B(1)(b) at the hearing.
[10]
Remedies
APC submits that the claim should be summarily dismissed because the Tribunal has no power to make orders sought by Ms Southey as they are outside the scope of s108 of the AD Act.
In the Points of Claim, under the heading: And the Applicant seeks, there are three sub-paragraphs:
1. Declaration that the Australian Press Council discriminated against Ms Southey in the handling of her complaint.
2. An order requiring the Australian Press Council to publish a statement on its website landing page; stating that it discriminated in the handling of complaints about transgender people and issues to remain online for a period of 18 months.
3. An order requiring the Australian Press Council to pay a donation of $3000 to a registered Australian charity that has the stated purpose of reducing discrimination, inequality and violence experienced by transgender Australians.
While the APC is correct that the Tribunal cannot make a declaration, other than as to s108(2)(f) which is in the nature of an order 'declaring' any agreement or contract made in contravention of the AD Act or the AD Regulation void, the Tribunal can make a finding that the APC discriminated against Ms Southey in the handling of her complaint which is subject to these proceedings. We do not consider the reference to 'declaration' to be material.
The Tribunal does have power to order that APC publish an apology. Section 108(2)(d) states:
(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),
Ultimately whether there is an order for a public apology and its terms are in the discretion of the Tribunal if it finds the complaint substantiated in whole or in part.
As to the payment of money, s108(2)(a) grants power to the Tribunal to order that the respondent pay the applicant damages up to $100 000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct.
Damages may be awarded for economic and non-economic loss. Damages for non-economic loss may be awarded for hurt, humiliation and distress. Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217. Damages are compensatory in nature. Aggravated and exemplary damages may also be awarded. The applicant must establish on an evidentiary basis that damage has been suffered to warrant compensation and that the damage was suffered 'because' of the contravention of the AD Act.
While the Points of Claim filed by Ms Southey is not of assistance to the Tribunal or the APC we are not minded to make any further orders as to filling of court documents as we see little utility.
Ms Southey's claim of direct discrimination against APC in the President's Summary is evident enough. Ultimately, the remedies sought by Ms Southey are a matter for her. The issue would only be enlivened if the Tribunal found a contravention of the AD Act. We find that Ms Southey's claim in proceeding 2022/00233496 is reasonably arguable and should not be summarily dismissed.
The Tribunal makes the following orders:
1. The proceeding in 2022/00295291 is dismissed pursuant to s55(1)(b) of the Civil and Administrative Tribunal Act 2013.
2. The remainder of the Respondent's interlocutory application made on 13 February 2023 is dismissed.
[11]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 14 June 2023